DEFENSE OF CONTESTED CLAIMS

 

Investigating and Handling Suspect Claims
DEFENSE OF CONTESTED CLAIMS

A. Accidental Injury Cases

To be compensable, injury must result from risk factors of employment. Virginia is an actual risk test state.

1. Prompt Investigation:

Key – As soon as possible, we cannot recreate facts once lost by delay. Find out what happened. What area(s) of body was injured? Witnesses?

2. Talk to Claimant:

Claimant who goes to lawyer will have “new memory.” Get thorough statement A.S.A.P. Focus on nothing unusual in job performed on the date of injury or in the manner in which the pain first arose.

Other key information:
a. who and where treated;
b. do not forget causal connection;
c. other accidents, injuries, illnesses, and hospitalizations;
d. prior compensation claims;
e. Claimant’s condition.

3. Talk to Co-employees:

Who is responsible for investigation — supervisor or foreman, or human resources personnel? Claim form and employer’s report are good sources for witnesses. If good information, get statements from witnesses.

4. Company Records:

Complete employer’s report based on own information, not Claimant’s words, or state “allegation” of Claimant. Beware of admissions. Good to get Claimant’s signature on an accident report. Have mandatory reporting – for any incident on job or any physical complaints.

5. Company Witnesses:

Use at hearing to keep lawyer informed, Claimant honest, and to present admissions of the Claimant — foreman (accidental injury, Claimant’s work status and duties) and eyewitnesses.

6. Medical Records:

Should contain description of onset; responsible party; prior conditions; Claimant’s complaints.

7. Recorded Statements:

A recorded statement can be very effective to impeach a claimant who changes his story; save the tape/disc.

B. Causal Relationship Cases

The Employer can prove that the current injury was not caused by the accident at issue.

1. Issues

a. caused solely by accidental injury;
b. caused solely by pre-existing condition;
c. caused by spontaneous or subsequent condition not related to accident;
d. pre-existing condition, but aggravated by accident.

2. Claimant’s Version

Get information regarding his prior problems, medical treatment, areas of body previously injured and treated.

3. Employer’s Version

Know the Claimant’s limitations and lost time prior to accident. Know of other incidents.

4. Medical Records

a. Employment Application – Good source of information – should contain physical examination report, checklist of prior injuries or diseases, prior compensation claims, prior hospitalizations.
b. Use Authorizations – To obtain medical records.
c. Medical Treatment Slips – Even if non-work related, signed by Claimant and doctor.
d. Hospital Records – Records from prior admissions often refer to prior treating physicians.
e. History – Prior conditions.
f. Diagnosis

5. Group Health Insurance Records

“Non-occupational”

6. Claimant’s Attendance Records

Prior lost time for pre-existing similar injury.

7. Independent Medical Examination

An employer gets one IME per specialty per year.
Doctor needs medical records to have reasoned basis for opinion. Use of respected doctor and thorough report will enhance credibility of no causal relationship argument before the Commission.

8. Maintain Medical Control

Tell doctor you will not authorize treatment for unrelated areas, e.g., knee to back. You may refuse to pay for proposed surgery until you get IME.

9. Summary – Promptly Contest And Fully Defend Claim

Too late may be very expensive; once paid under Commission’s order, you cannot get your money back. When in doubt, call counsel with all facts regarding causal relationship. Fully defend by producing company witnesses and company records at hearing.

10. Surveillance

When to use.
What to look for.

C. Occupational Disease Claims

1. Requirements for Occupational Diseases

In addition to accidental injuries, the Virginia workers’ compensation law also provides compensation for occupational diseases. An occupational disease is a disease that is the expected result of and contracted in the course of employment. It is further required to be a disease which is either caused by the peculiar hazards of a certain job or a disease which, like some types of cancer, is known to result from exposure to some chemical, biological or physical agent to which the Employee is exposed in his employment.

As most Employers are aware, extensive media attention has recently been focused on the problems of repetitive motion conditions such as carpal tunnel syndrome. Attorneys for Employees are increasingly using the occupational disease Provisions to obtain benefits for Employees with carpal tunnel syndrome, backaches, or other aches and pains – allegedly due to “repetitive motion” or “repetitive stress.”

Virginia law precludes compensation for virtually all repetitive or cumulative trauma injuries. Only carpal tunnel syndrome and hearing loss claims are deemed compensable as ordinary diseases of life, and only if proven by clear and convincing evidence.

2. Defending Occupational Disease Claims

An Employer or Insurer facing an occupational disease claim has several defenses available. First, the causal relationship of the alleged disease to the employment should be carefully examined. This will most likely require the assistance of a medical expert with experience in dealing with the appropriate type of claim. The medical expert needs to be fully informed regarding the nature of the Employee’s job duties.

Two other defenses in occupational disease claims are based on the fact that the Employee may have been exposed to the causative agent outside of his or her employment, either prior or subsequent employment. Virginia law requires that the Employer and Insurer at the time of the Claimant’s last injurious exposure are liable for his compensation. Thus, if, for example, the Claimant brings a claim for lead exposure and the Employer can show that, since his employment with the Employer, he has worked with another employer where he would be exposed to lead, the first Employer will not be liable for compensation.

Second, if the Employee’s job duties or exposure to an agent in the course of employment merely aggravate a preexisting, non-occupational disease, it does not become a compensable occupational disease. For example, if the Claimant has pre-existing arthritis and then brings a claim alleging repeated lifting at work caused shoulder impingements, or if a Claimant has preexisting thyroid conditions, diabetes or other systemic problems which can lead to carpal tunnel syndrome, and then alleges that typing caused an occupational disease of carpal tunnel syndrome, this defense would be available. Care must be taken to collect the Claimant’s entire medical history to properly defend the claim. A carpal tunnel claim must be proven by clear and convincing evidence to be caused by the employment to be compensable under Virginia law.

3. Scope of Employment Defenses

a. Going and Coming Rule

In general, injuries sustained while going to or from work are not covered under workers’ compensation. However, there are many exceptions to the rule–if the employee is on a “special mission” for the employer, is driving a company vehicle, is paid mileage expenses, has to use personal vehicle for work on a regular basis, etc. Once the employee is on the employer’s premises, including the parking lot, an injury is generally compensable.

b. Recreational Injuries

May be compensable, if the employer sponsored a sports team, provided financial support, encouraged employee participation, etc. Injuries sustained during company picnics, outings, training programs, will also likely be compensable.

c. Deviations

Injuries occurring at a time, place, or by a hazard beyond the scope of employment duties are generally not compensable. Issue is whether the deviation was significant enough to remove the Claimant from the scope of employment at the time of the injury.

d. Horseplay

Horseplay, if significantly outside work duties, is considered outside the scope of employment and injuries incurred during horseplay are generally not compensable. However, an employer who regularly condones horseplay may bring it within employment for compensation purposes.

e. Willful Misconduct

Injuries caused by the Claimant’s willful misconduct are explicitly excluded from compensable injuries by the Act. This is an affirmative defense which must be proven by the employer. Notice of the defense of willful misconduct must be raised, in writing, at least 15 days prior to hearing. Rule 1.10.

f. Violation of Safety Rule

Injuries caused by a violation of an enforced safety rule are not compensable for the violator. The rule must exist for the safety of the claimant and be enforced by the employer.

g. Intoxication and/or Drugs

A claimant who is injured due to intoxication or due to the influence of a controlled substance is not entitled to compensation.

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In addition to aggressively pursuing defense of our clients’ interests, each spring, we present a free seminar to update employers, insurers, third-party administrators, and others on recent developments in workers’ compensation law. If you wish to be added to the mailing list for next year’s seminar, contact Marilyn N. Harvey.

The Gallery Building Suite 130 5712 Cleveland Street Virginia Beach, VA 23462 Ph: (757) 466-0464 Fax: (757) 466-0834 Email: info@clarkedolph.com